REUTERS | Eloy Alonso

Recently, in the course of reviewing a proposed building contract for an employer, I had cause to consider how responsibility for obtaining planning consents had been addressed. Or rather, whether it had been addressed at all. Jean-François Clin v Walter Lilly & Co Ltd is a forceful reminder to effectively deal with this issue. The Court of Appeal held that, in the absence of an express term to the contrary, a term was implied into the parties’ contract requiring the employer to obtain planning permission for redevelopment of the property and, generally, making the employer responsible for obtaining necessary consents. Continue reading

REUTERS | Amir Cohen

Bias and apparent bias is a subject that has cropped up many times on this blog, whether it was an adjudicator “phoning a friend“, an arbitrator (allegedly) being appointed too many times by the same referring party (although that isn’t one of mine!) or a judge getting upset over his lost luggage (who wouldn’t be?).

It seems anyone involved in court or tribunal work is vulnerable to an accusation of it. Therefore, it should come as no surprise that I’m commenting on another example of behaviour that gives rises to the charge. Continue reading

REUTERS | Clodagh Kilcoyne

Last week, Fraser J handed down his judgment in Gosvenor London Ltd v Aygun UK Ltd, a case in which the defendant (Aygun) was seeking to resist payment of an adjudicator’s award of around £650,000 on the grounds that a substantial part of the award was allegedly derived from fraudulent invoicing of Aygun. In the alternative, Aygun sought a stay on the basis of fraud, alleged witness intimidation and, most importantly, the entirely unsatisfactory nature of the claimant’s (Gosvenor) statutory accounts for 2016/2017 and the unbelievable explanations given on its behalf as to the contents. This combination of factors led the court to conclude it was unlikely that Gosvenor would repay the adjudicator’s award, were it required to do so following a challenge to the adjudicator’s decision in subsequent TCC proceedings.

Fraser J’s judgment is important for a number of reasons. Critically it has added a further principle to those set out by HHJ Coulson QC (as he then was) in Wimbledon v Vago in order to deal with the factual situation presented to it. Continue reading

REUTERS | Srdjan Zivulovic

Coulson J’s decision in Grove Developments Ltd v S&T (UK) Ltd has triggered a great deal of commentary, including Jonathan Cope’s post, which I read with great interest. It got me thinking about what strategies an employer or contractor might adopt to counter a smash and grab adjudication, either pre-emptively or after the referral has landed. Continue reading

REUTERS | Vijay Mathur

Just like experts are a recurring theme on this blog, it seems that project monitoring is too, as I have considered the judgment in Bank of Ireland v Watts Group plclooked at the judgment in Bank of Ireland v Faithful & Gould Ltd and I have also discussed the judgment in Lloyds Bank plc v McBains Cooper Consulting Ltd.

I’m back looking at Lloyds Bank plc v McBains Cooper Consulting Ltd this week, as the case has been before the Court of Appeal. It is quite a tough one because the original judgment was long and complex (I called it a “monster judgment” at the time), and much of the appeal turns on the facts (which won’t necessarily be of interest). However, here goes. Continue reading

REUTERS | Navesh Chitrakar

I like reading Fraser J’s judgments. Where else would you get phrases such as “banter in a public house during consumption of a gallon of ale (or lager)” and “quite apart from any illumination of the wisdom (or otherwise) of discussing (still less agreeing) incentive payments of such extraordinary size at an evening of drinking in the Horse & Groom”, nestled in among legal analysis? (He was talking about Blue v Ashley, which I’m sure was an interesting informal business meeting!)

But, back to the point. And that is about witness evidence and what Leggatt J once called the “faulty model of memory as a mental record”.

A few years ago, I wrote about Leggatt J’s comments in Gestmin SGPS SA v Credit Suisse (UK) Ltd. I followed that piece a year or so later with some observations following Jefford J’s judgment in Dacy Building Services Ltd v IDM Properties LLP. That case has been back before the court (as Jonathan discussed last week) and it is where my Fraser J quotes were taken from. Continue reading

REUTERS | Regis Duvignau

Two recent judgments illustrate the difficulties that oral contracts can cause in adjudication enforcement proceedings. The first was Jefford J’s judgment in Hart v Ideal and the second (although actually the first in time) was Fraser J’s judgment in Dacy v IDM (which had also been before Jefford J a couple of years earlier). Continue reading

REUTERS | Ruben Sprich

In Kazakh mythology, the great phoenix Samruk laid a golden egg between the branches of a poplar tree and became a symbol of prosperity and happiness for the people of these lands. High above Astana’s beautifully symmetric cityscape, this symbol has been immortalised atop the capital’s viewing platform, the Baiterek Tower.

Having identified some of the key features of the AIFC and its court in my previous article, I intend to take up the birds-eye vantage point of the Samruk and consider some of the interesting facets of the new rules governing the AIFC court’s proceedings. This is not intended to be a comprehensive review of the procedural rules, but merely an introductory insight into some of their distinctive or important features. Continue reading

REUTERS |

Two recent cases, one in the Court of Appeal, the other in the Supreme Court, have created significant uncertainty around the acceptability of email service. It seems that there may now be a disparity between the CPR and the Party Wall Act 1996, despite the similarities in the wording of the relevant provisions for the two regimes. Continue reading